Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Argument recap: Rewriting a law to save it

Posted Wed, February 22nd, 2012 1:28 pm by Lyle Denniston

Analysis

Sometimes, the government needs the Supreme Court to interpret a law narrowly in order to save it from almost certain constitutional doom, and that was exactly what Solicitor General Donald W. Verrilli, Jr., badly needed on Wednesday. After being told repeatedly that Congress had taken a very big First Amendment risk when it passed the Stolen Valor Act six years ago to protect the honor of military medals, Verrilli could easily draw the conclusion that — sentimentally — the Court did not have the heart to strike it down and that he had shown them the way to salvage it. If that proves true, the Act that survives may well seem like a very thin version of the original.

The Court, of course, has a long tradition of avoiding constitutional decisions when it can decide a case otherwise, but there is also a tradition that judges should not actually rewrite a law to make it constitutionally acceptable, and sometimes the line between the two traditions is quite blurred. So it was during the argument in United States v. Alvarez (11-210). As that law emerged from Congress, it made it a crime — with no exceptions and with no required proof of actual harm — for an individual to lie in any situation about having been awarded a military medal or decoration. Lying, without any detectable consequence, was the defined crime.

And, as Justice Anthony M. Kennedy told Verrilli very early in the argument, the Court had never allowed Congress to go that far with a law that punished a false statement. The Solicitor General had claimed that the Court had declared that “calculated falsehoods” are entitled to no constitutional protection, but Kennedy retorted: “I can’t find that in our cases; it is a sweeping proposition.” After Verrilli ticked off some cases that he suggested supported his claim, Kennedy said “I simply cannot agree that those cases stand for that broad proposition.” Justice Sonia Sotomayor also suggested to Verrilli that his basic argument amounted to the “somewhat dangerous” idea that the Constitution provided absolutely no protection for lying about medals.

As matters turned out, though, Verrilli had not come to the lectern to dwell upon that sweeping argument. He was there to keep the Act on the books, by reading into it the understandings that the individual had to know that he or she was violating the Act when telling a lie about a medal, that the lie had to be about that individual, that medals and decorations will lose some of their value as a result, and that the loss of that value will intrude upon “the core values of military service.” It would not cover a lie unless the audience heard it as a claim of fact, it would not cover lying as “political theater,” it would not cover claims made by a political candidate, it would not cover parody or satire, it would not cover innocent exaggeration. It would, in short, infringe in absolutely no way upon expression that is entitled to First Amendment protection — a point that Verrilli got substantial assistance in making when his adversary, Los Angeles public defender Jonathan D. Liddy, conceded that the Act even as written would not “chill” any protected expression.

There was one very curious development during the argument that seemed to offer the Court a way to save the Stolen Valor Act’s constitutionality if the Justices were not prepared to engage in the wholesale reframing of the law. It was a suggestion by Justice Kennedy (perhaps drawing on one of the amicus briefs filed in the case) that the Court might regard untruthful statements about military decorations as being a kind of trademark violation. Under that rationale, military medals would be considered a kind of intellectual property, and false claims about them would confuse the public and therefore deprive the government and the veterans who had legitimately earned the medals of some of the cultural value of the military honor. It was not clear that any other Justice — with possibly the exception of Justice Stephen G. Breyer — might join in such an interpretation, but it is on the table and available if the Court should wind up needing a way to compromise.

The Court, as one might have imagined, used the case to launch a good deal of creative imagining, in an almost uninterrupted flow of hypotheticals. As the Justices sought to find out just what the government could do constitutionally to police the telling of lies, they talked about trying to impress a dating partner, trying to win cheers from a crowd or being treated to a parade on Main Street, trying to persuade voters at a political event, trying to sell a product with puffery, trying to deflect a spouse’s suspicion about an extramarital affair, and, more seriously, trying to deter Nazi stormtroopers from finding out that Jews were being hidden in the basement. While no one on the Court seemed to be starting with the premise that lying is OK because everybody does it, they did want seriously to know ,as Chief Justice John G. Roberts, Jr. asked at one point: where does the government power to police lying stop?

Verrilli tried to put aside all of the “slippery slope type of questions” by urging the Court to come back to the pared-down version of the Act that he was promoting. He asked the Court “not to decline to make a sound decision about this statute based on concern about not being able to draw the line, because this statute is as narrow as you can get.”

Libby, the lawyer for the convicted Californian who had lied about receiving the Medal of Honor, Xavier Alvarez, had to struggle when the Justices tried to draw out of him alternative ways that Congress might have chosen to protect military medals from being defiled by lies about receiving such decorations. And, aside from his unaccountable concession (even he called it a concession) that the Act may not “chill” any protected speech, Libby made a significant misstep in his inability to persuade the Justices that striking down the Act would not also imperil other laws designed to regulate lying, such as the laws against giving false statements during government investigations.

For Libby, his best moment came in exchanges with Justice Antonin Scalia and the Chief Justice, after Scalia had wondered whether Congress, in order to try to deter lying about medals, could constitutionally approve the granting of a “medal of shame” to those “charlatans” who engaged in such lies. The lawyer said that certainly was something that the government could do. The Chief Justice immediately challenged him, suggesting that the government would not have such power under Libby’s theory in this case. To that, the attorney easily responded: “Well, there is a significant difference between a criminal sanction that puts someone in prison versus simply exposing them for what they are, which is a liar.”

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]